United States v. Padilla-Esparza

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. 2:13-CR-03676-KG-1).

Kari Converse, Assistant Federal Public Defender (Stephen P. McCue, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Albuquerque, New Mexico, appearing for Defendant-Appellant.

Anna R. Wright, Special Assistant United States Attorney (Damon P. Martinez, United States Attorney, with her on the brief), Office of the United States Attorney, Las Cruces, New Mexico, appearing for Plaintiff-Appellee.

Before LUCERO, TYMKOVICH, and MATHESON, Circuit Judges.

OPINION

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MATHESON, Circuit Judge.

United States Customs and Border Protection (" CBP" ) Officer Manuel Aguilera issued a " Be on the Lookout" (" BOLO" ) alert for Daniel Padilla-Esparza and his truck for suspected bulk cash or drug smuggling. Based on the BOLO, United States Border Patrol agents (" BPAs" ) stopped Mr. Padilla-Esparza after he crossed the Las Cruces, New Mexico border patrol checkpoint. The BPAs released him because they believed they had stopped the wrong truck. When they discovered a few minutes later they had actually stopped the right truck, they initiated a second stop. After a drug-detection dog alerted to the presence of narcotics, they discovered 16 kilograms of cocaine in a non-factory compartment.

Based on the evidence seized, a federal grand jury charged Mr. Padilla-Esparza with one count of possession with intent to distribute 5 kilograms or more of cocaine

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in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He filed a motion to suppress, contending the BPAs seized evidence in violation of the Fourth Amendment. The district court denied his motion. He then entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress. Mr. Padilla-Esparza now appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual Background

Mr. Padilla-Esparza is a Mexican citizen and United States lawful permanent resident. On February 25, 2013, he was traveling from Mexico to the United States through the Paso del Norte (" PDN" ) port of entry in El Paso, Texas. CBP officers stopped Mr. Padilla-Esparza after a drug-detection dog alerted to his truck. Officers searched his truck and found an empty, hidden non-factory compartment. The officers released Mr. Padilla-Esparza, but they entered an alert on the Treasury Enforcement Communications System (" TECS" )[1] regarding Mr. Padilla-Esparza and his truck--a silver Honda Ridgeline with temporary license plates.

Nearly seven months later, on September 7, 2013, CBP officers conducting outbound inspections stopped Mr. Padilla-Esparza at PDN while he was traveling southbound to Mexico. Mr. Padilla-Esparza had two pieces of luggage and declared that he had $300 in cash. Shortly thereafter, he reported having an additional $2,000 in cash hidden in a camera case. The officers referred Mr. Padilla-Esparza for further inspection and ran his information through the TECS, where they came across the February 25, 2013 TECS alert.

The officers informed CBP Officer Aguilera. He ran a query for the prior six months and learned that Mr. Padilla-Esparza had traveled through the Las Cruces and Alamogordo, New Mexico border patrol checkpoints at least once per month.

Officer Aguilera and his partner interviewed Mr. Padilla-Esparza. Mr. Padilla-Esparza told them he was traveling from his home in Denver, Colorado to meet his girlfriend at the airport. He told them he owned a landscaping business and worked for clients in Albuquerque, Santa Fe, and Colorado. He had no paperwork for his last three jobs, could not remember the names or addresses of his last three clients, and could not remember how much he was paid for each job. The officers also searched Mr. Padilla-Esparza's belongings and found receipts totaling $1,300 for new clothing from outlet malls. Based on his knowledge and experience, Officer Aguilera found Mr. Padilla-Esparza's spending habits and his limited explanation of his landscaping business to be inconsistent.

Later that day, Officer Aguilera created a second TECS alert for Mr. Padilla-Esparza, noting possible bulk cash or drug smuggling, and updated TECS with Mr. Padilla-Esparza's permanent license plate number. Officer Aguilera also set up an alert to be sent to his cell phone when Mr. Padilla-Esparza returned to the United States.

On September 10, 2013, Officer Aguilera received an alert that Mr. Padilla-Esparza had re-entered the United States. Officer Aguilera contacted the CBP Operations Center and activated a BOLO for Mr. Padilla-Esparza and his truck. The Operations Center disseminated the BOLO to the United States Border Patrol and other

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law enforcement agencies. The ...

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